Paul Boron was a 13-year-old middle school student in Manteno, Illinois on February 16 this year when he was summoned to the principal’s office to discuss some detention sessions he’d skipped. The partially blind student apparently thought he might need to be able to show what was said during the conversation with both the school’s principal and assistant principal. So on his way to see the principal, he hit “record” on his cell phone; the conversation would take place in the reception area of the school secretary’s office, with the hallway door open.

By Boron’s account, about 10 minutes into an argumentative discussion, the student told the two officials he had been recording the talk. Then the principal informed Boron the previously undisclosed recording had been a felony, and ended the conversation.

But that didn’t end the matter. Two months later, the assistant state’s attorney for Kankakee County charged Boron as a juvenile with the criminal offense of “eavesdropping,” a class 4 felony, under state law punishable by a prison sentence of one to three years and a $25,000 fine.

Illinois defines its “eavesdropping” offense as surreptitiously recording any “private conversation,” meaning “oral communication” between two or more persons, where any of them has a “reasonable expectation” of privacy. While Illinois is one of a dozen states – not including New York – conditioning recording of conversation to the consent of all parties, the state has long pushed the limits on its all-party-consent requirement.

In March 2014, the Illinois Supreme Court overturned the previous state eavesdropping law, finding it overbroad and unconstitutionally restricting First Amendment free-speech rights by outlawing recording or publishing speech not really intended to be private; the court gave as examples a loud argument on the street, a debate in a public park, and interactions between citizens and police officers.

There was ample evidence of the overturned law having stifled free-speech rights or criminalized recording officials’ statements. In 2009, it was used against an artist who recorded his arrest for selling his artwork on Chicago’s State Street without a permit; the following year the anti-eavesdropping law was invoked against a defendant who brought a tape recorder into his hearing, when the court refused to provide a court reporter, and against a woman who taped her discussion with police of her sex-harassment complaint against another cop.

After the court’s action, the state legislature and governor replaced the invalidated law with the current version, which contains an exemption for citizen interactions with police, but is still regarded as the nation’s most restrictive of its type.

Defenders of Paul Boron argue the argument he was having with officials at his school shouldn’t be regarded as private, since it occurred in a public space with the door open. Some argue officials shouldn’t expect privacy when imposing punishments or interpreting rules; others note the school district’s student manual cautions against recording conversations with other students, but makes no mention of school officials. And many argue there’s no good purpose bringing a 13-year-old up on charges that could harm him and his family. So it could be time for Illinois legislators to take a critical look at how this law is being used.

Cracking down on illegal immigration was a central part of the Trump presidential campaign and continues as a major emphasis of the new administration. ICE and the administration have widely publicized some of their immigration enforcement initiatives, such as round-ups targeting alien gangs like MS-13, or raids aimed at non-citizens illegally here who have criminal records. But the new immigration enforcers have had little to say about another ICE tactic: using sophisticated electronic technology to locate targets through their cell phones.

In mid-May, the Detroit News reported ICE had received a search warrant allowing use of a “cell site simulator” to locate a 23-year-old undocumented restaurant worker from El Salvador, who was in the country illegally after having been twice deported. Sold under a variety of names, the best known of which are Stingray and Hailstorm, this portable device helps locate and track cell phones by imitating the signal a real cell tower makes, thus fooling the target’s cell phone into disclosing its location. Such tracking devices have been used by military and intelligence forces operating in Afghanistan and Iraq, and also employed by federal, state and local law enforcement agencies. In tracking a target’s cell phone, a Stingray picks up signals not only for that cell phone but also for others in the same area. In some cases, it can even intercept data and conversations on the cell phone it is monitoring.

ICE is known to have possessed such equipment since at least 2008, but not until the fall of 2015 did the Departments of Justice and Homeland Security publicly adopt policies on their use. Under those restrictions, agents are supposed to have enough probable cause to obtain a search warrant and are supposed to delete extraneous data gathered from cell phones not targeted in the warrant. Many state and local law enforcement agencies – not subject to the Justice and Homeland Security restrictions — have also obtained the devices, often through federal anti-terrorism grants. The American Civil Liberties Union (ACLU), which supports further controls on Stingray-type devices, estimates at least 72 agencies in 24 states and the District of Columbia currently have such devices; it also sued ICE and the Customs and Border Protection seeking to compel them to answer a Freedom of Information request for more extensive disclosure on the agencies’ use of the devices.

One reason relatively little is known about how widely and for what purposes Stingray-type devices are being used by state and local law enforcement agencies is that the Federal Bureau of Investigation uses confidentiality agreements with the state and local agencies to limit public knowledge of the devices, which the FBI uses for counter-intelligence activities. A few states and localities have adopted, or are considering, legislation to set conditions on when and how the devices can be used.

When I first started practicing criminal defense law, using violence might have been enough to qualify someone for membership in most criminal gangs. But these days, many gangs have discovered more sophisticated tools can have as much a place as mere raw mayhem in their plans. One prominent case in point: credit card fraud.

It’s a major business worldwide, and nowhere more so than in the U.S. Trade press estimates from the credit card and mobile payments industry say this country accounted for almost half of the $16 billion in global losses from credit card fraud (both because the U.S. is such a large target, and because the industry in America has been slower than some of its counterparts in other nations to adopt anti-fraud protections, such as chip-equipped cards).

The growing reach and depth of technology has also incentivized gangs to acquire the skills needed to profit from more systematic ways of generating ill-gotten gains from credit card transactions. There is a consistent and lucrative payoff from being able to exploit data network vulnerabilities and mine the internet for information useful for identity fraud, card counterfeiting, card skimming and a host of other ways to cash in on someone else’s creditworthiness.

Since New York City is a leading world financial center, it should not be surprising to find crimes associated with credit cards to be a major concern here. Younger gang members, having grown up with computer technology, are often better able than longer-term members to find opportunities and turn technology to criminal purposes.

Gangs also appear to have learned devices like payments cards can be harder for police to detect for moving illicit funds, and police report finding payment cards used in drug sales and money laundering. For much the same reason, supporters of overseas terrorist groups have attempted to use credit cards to transfer funds to them.

As credit and debit instruments displace cash, they are likely to be taken up by crime gangs, a trend the NYPD says is on the increase. In mid-December, for instance, 35 people linked to a Brooklyn gang were arrested on charges of credit card fraud. According to prosecutors, the gang ran up $100,000 or more in fraudulent credit card purchases after buying more than 750 credit card numbers from internet-based suppliers, then using embossing machines to make realistic-looking fake cards. Gang members made $1 charges at city parking meters to test if their bogus cards were working.

Similarly, last April dozens of members of a gang were arrested for a similar scheme using stolen card data from Barneys to make bogus credit cards in Brooklyn and Queens for repeated shopping trips for luxury goods that ran up over $400,000 in losses for Barneys and Saks Fifth Avenue.

Former New York City police commissioner William Bratton had noted that NYPD had 250 persons assigned to its financial crime unit, to reflect the growing size of fraud, identity theft and cybercrimes.

The devices, now used about 75% of police forces in the nation, either fixed on stationary locations, such as phone poles, or mounted on the backs or roofs of police cruisers, can capture and record images of hundreds of license plates per minute; using optical character recognition, plate numbers are automatically compared to “hit list” databases of invalid or stolen plates, and of vehicles for which police are searching.

Makers of the ALPR devices and many police forces argue the privacy argument is misplaced. Unlike individually identifiable data like medical information or Social Security numbers, license plate numbers are meant to be displayed and aren’t inherently sensitive data. So, this argument runs, no one is entitled to claim privacy protection to something meant to be in plain sight. Police groups argue ALPRs also simplify and speed up routine tasks like recovering stolen vehicles and identifying suspicious movements, such as vehicles that archived records can show were at the scene of burglaries and other crimes.

Civil liberties groups on the other hand complain that storing the data on large numbers of citizens, in the absence of any reason to connect them with a specific crime, amounts to illegal surveillance and presents opportunities for misuse in tracking the movements of law-abiding citizens. Even Virginia’s former Republican attorney general in 2013 issued an opinion holding that while use ALPRs to investigate active cases was lawful, but retaining ALPR data without a need clearly shown in advance was not.

After that, Virginia’s state troopers began dumping collected data after 24 hours, but many local police forces chose to retain it for weeks, months or even years. In 2015, the Virginia state legislature passed a bill to end retention of ALPR data, but the state’s governor vetoed it, citing objections from local police.

In November, a Fairfax County judge rejected a local man’s request that the court declare local police violate a state privacy law, the Government Data Collection and Dissemination Practices Act, and order it stopped. As a matter of law, the judge decided, license plate numbers do not amount to “personal information” covered by the state privacy statute, which generally requires legal authorization for collecting or retaining personal information.

If the Virginia Supreme Court agrees to hear the appeal of the lower court’s dismissal of the challenge to current practice by many police forces, that might provide an avenue for bringing the controversy before the U.S. Supreme Court. Even if this case does not reach higher courts, the growing use of ALPRs makes it all but inevitable their use will attract greater attention, either from courts or legislators.

Twelve states, not including New York, have already responded to the potential privacy issues in retaining data by either forbidding it without specific authorization or enacting limits on how long ALPR-generated data can be kept. It’s likely more states will consider whether new controls are needed on their use, especially on the retention and access of routinely gathered data.

Does the FBI Need a Warrant to Tape Outside a Federal Courthouse?

In under two weeks, two California-based federal judges have come up with sharply different answers to the same question: does the Federal Bureau of Investigation (FBI) need a warrant to use hidden recording devices to make audio or videotapes outside federal courthouses?

Both decisions grew out of the same investigation into illegal bid-rigging at open auctions for foreclosed properties, held on courthouse steps. In the first decision, issued July 22, district court judge Phyllis Hamilton called the hidden taping “at the very least unsettling,” but allowed the recordings to be used as prosecution evidence, despite the FBI’s lack of a warrant authorizing it to tape secretly.

Criminal defendants in the first case had tried to keep prosecutors from using audio and video recordings of their conversations captured by FBI-hidden recorders outside entrances to courthouses in Alameda and Contra Costa Counties. The defendants cited a key 1967 Supreme Court decision (Katz v. United States), which held secretly taping conversations without a search warrant in places where those taped had a reasonable expectation of privacy violated the Fourth Amendment’s protections against unreasonable government searches and seizures.

Wanting to listen in as the suspects coordinated bids, the FBI had planted recording devices in lampposts, bus stops and parked cars outside the courthouse entrances. The main federal law on wiretapping follows the Katz decision in suppressing court use of conversations recorded in violation of that standard. So the accused bid-riggers asked the court to keep their recorded conversations from being used against them before a grand jury or at trial.

Judge Hamilton dismissed defendants’ argument their bid-rigging conversations showed they had a reasonable expectation of privacy. She noted the conversations, instead of being whispered and clandestine, were instead held in public places. She also noted that where videos of the conversations were available, the defendants did not seek out more remote or discreet locations and their behavior did not indicate they thought they were in private settings.

In addition, when the defendants spoke at normal volume, they were clearly audible when recorded by devices that did not amplify the conversations. In fact, at one point the recordings showed defendants shouting to one another to be heard over a jackhammer operating nearby.

The judge also noted that the defendants had been unable to cite a single case holding that the entrance to a federal courthouse was an area where persons had a reasonable expectation of privacy. She noted that that the presence of lawyers, court officers, and persons passing by, entering and exiting the area would make it unreasonable to expect their conversations might not be overheard.

But not too long after or far away, on August 1 another federal district court judge, Charles Breyer (the brother of Supreme Court Justice Stephen Breyer), ruled the FBI had in fact violated the Fourth Amendment by secretly taping outside the San Mateo County courthouse.

Accepting the arguments of other foreclosure bid-rigging defendants, he decided the FBI had “utterly failed” to justify its warrantless surveillance, and so could not use any of the 200 hours of taped conversations the agency had collected over nine months. In fact, Judge Breyer scheduled another hearing for arguments that the taping had so affected the case that prosecutors should not be allowed to go forward with their now-tapeless case.

The apparent moral: if you have criminal thoughts, don’t give voice to them on the courthouse steps. And if you do, make sure it’s in San Mateo County.

About the CalGang Database

For over two decades, California law enforcement agencies have been compiling CalGang, a massive state-funded database designed as a shared criminal intelligence resource for local law enforcers. At last count, it identified over 150,000 persons as gang members or gang associates.

But a harshly critical audit of the database, requested by the state legislature and performed by the state auditor’s office, recently found reasons for skepticism as to the information’s accuracy and the system’s legality.

Inaccuracies and Privacy Violations

For example, one much-noted finding of the audit report was that 42 persons in the CalGang database were listed, at the time entered, as being younger than one year old. In addition, the audit also revealed that 28 of those 42 supposed gang members were listed as eligible for inclusion because they had admitted they were part of a gang – making them precocious not just in their criminal tendencies, but also in their communications skills.

California’s Street Terrorism Enforcement Prevention Act sets criteria for how participating law enforcement agencies can enter someone into the database, including self-admissions and gang tattoos or clothing. According to the auditor’s report, 93% of current entries are male, and nearly two-thirds (64%) are Hispanic.

Besides becoming less useful due to inaccuracies, the auditor’s report cautioned, the database frequently violates state and federal privacy and other laws. The audit report found some individuals, and even some entire gangs, were entered into the database without justification. Some entries remained in the system even after those records should have been purged (five years, unless the individual triggers a new listing — although some entries were shown as good for 100 years). And despite a state law, which took effect early in 2014, requiring notice to parents when their children are entered in the system, those notices are frequently not given out, the report also found.

The 109-page audit report focused on four law enforcement agencies actively using the database, the city police departments in Los Angeles and Santa Ana, and the sheriff’s departments for Santa Clara and Sonoma counties. Of the nine gangs added to the database by those agencies, only one met proper inclusion criteria. In a random sample of 100 individual database entries made by those agencies, 13 were found to have been made improperly.

Needed Changes Are Coming to the CalGang Database

Lack of oversight for the database’s operations was another problem identified in the auditor’s report. The auditor’s report called for moving control of the database, which now consists mostly of self-regulation by participating agencies, to the state Department of Justice, and requiring audits at regular intervals.

A bill (AB 2298) offered by a San Diego Assemblywoman, who claimed local police wanted to add her son to the CalGang database even though he had not committed any crime, was backed by civil liberty and immigrant organizations but opposed by law enforcement groups.

Near the finish of the state’s legislative session at the end of August, legislators approved a modified version of the bill, sending it on to Gov. Brown, who signed it on September 28. So once it takes effect in about a year, AB 2298 will require notice to all individuals being added to the database, and provide an appeals process.

No matter how fast technology advances, the resourcefulness of certain people in using it to their disadvantage somehow manages to keep pace. By now, you’ve no doubt heard or read of these lawbreakers who greatly helped law enforcement by posting Facebook selfies showing themselves engaged in clearly criminal wrongdoing.

One prime example was the Tennessee man a few years ago who, despite two prior felony firearms offenses, decided it would be a good idea to post to his Facebook page a self-taken photo of himself glowering into the camera while holding a .45-caliber weapon. (At the time of the photo, he was still on probation for the more recent of the two prior handgun convictions.)

That miscalculation earned him a more than 15-year prison sentence for his latest, self-documented misconduct, a felony firearm possession charge. Think of that. 15 YEARS. Because he posted a picture. And there are plenty of other instances of those who felt compelled to post on Facebook or other social media site incriminating photos of themselves preparing for crimes they would shortly commit or displaying contraband, much to the later delight of law enforcement investigators.

Sometimes, especially in the case of those who steal smart phones or tablets which they then use to display their ill-gotten gains, the crime victims themselves are able to locate the thieves online, thus sparing official investigators the need to do much investigating.

Launched by Twitter in 2015, Periscope allows users to make live videocasts showing themselves in action, and permits viewers to post comments or heart emojis to show approval, which flutter up the screen (the more received, the higher they climb).

You could probably think of a large number of ways to use a new instant video-streaming app like this — but would one of them be using it to document your progress as you drive drunk through your town? In the early months following the app’s introduction, that’s been precisely how a 33-year-old Long Island man and a 23-year-old Florida woman opted to employ Periscope.

In both cases, the drivers narrated alcohol-fueled late night motor jaunts on Periscope, but rather than admiring comments, mostly attracted warnings to get off the road; some commenters warned the inebriated driver they planned to notify the police, and in each case at least several did. Besides providing evidence of erratic driving, the streaming Periscope feed helped police who tuned in track where each inebriate’s vehicle was headed.

Both drivers were pulled over by police for field sobriety tests, which, unsurprisingly, the drivers clearly failed. Each driver was soon booked on DUI charges. The Florida woman escaped with a six-month license suspension, a year’s probation, plus community service and other penalties (the video of her giving a slurred, profanity-laced narration of her drive – including running red lights and flattening two tires — remains available to the world on YouTube). Charges for the Long Island driver are still awaiting disposition.

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The New York legislature has seen the introduction of a bill, with bipartisan sponsorship that, if adopted, would make New York the first state to give police immediate access to drivers’ cellphones at accident sites. The sponsors of the bills (S. 6325, A. 8613) intend the measure as a way to attack distracted driving, by showing whether the driver was talking or texting on the phone right before or at the time of the accident.

They are calling the proposal “Evan’s law,” to honor 19-year-old Evan Lieberman, who had just completed his freshman year of college when he was fatally injured in a June 2011 collision in Orange County; the car in which he was a back-seat passenger was in an early morning collision with a vehicle driven by another 19-year-old.

Evan’s father learned police do not routinely check cell phone use by drivers involved in collisions, so he filed a civil lawsuit to get that information. The cell phone of the other driver showed he had been using it shortly before the accident. Evan’s father became one of the founders of an activist group working to prevent distracted-driving accidents.

If enacted, the bill in the legislature would mean police would not have to subpoena cell phone records if they suspect distracted driving played a part in an accident, but could instead, as a routine part of an accident investigation, check whether a cell phone or other portable electronic device had been in use shortly before or at the time of an accident that involved death, serious injury or property damage.

Sponsors liken their measure to laws authorizing roadside use of a Breathalyzer to detect alcohol-impaired drivers; as with refusal to submit to a breath test for alcohol, drivers who refused to allow their cell phones to be examined in a roadside test would face fines and loss of their driver’s licenses.

To protect privacy, the bill would limit access to information on whether the phone had been in recent use; the roadside test would be required to use technology preventing warrantless police access to other information on the cell phone, such as contacts, phone numbers, conversation texts, applications data or photos.

There as yet is no known “textalyzer” capable of scanning a cell phone to see if it been used recently while simultaneously shielding other information, but one is thought to be near development by Cellebrite, an Israeli firm specializing in mobile communications diagnostics and forensics. (The firm is widely thought to be the private contractor the FBI hired to unlock the San Bernardino mass shooter’s iPhone, after Apple refused to build in a back-door access method.)

New York has banned driver use of hand-held cell phones since 2001. A Federal Highway Administration study done in 2009 found drivers who texted behind the wheel were 23 times more likely to crash; it also said talking on a hand-held cell phone while driving made an accident four times more likely. A survey done five years ago for the Centers for Disease Control and Prevention found nearly half of students 16 and older admitted to having texted or emailed while driving within the past 30 days. Other studies have found texting while driving has an effect on driver safety equivalent to having a blood alcohol level of .08%, the threshold for intoxication in most states.

Camden, New Jersey, an aging industrial city of about 78,000 across the Delaware River from Philadelphia, has seen better days. Its population has more or less steadily shrunk since the 1950’s, its manufacturing base has greatly eroded, and its crime rate has consistently been in the top ten among the nation’s cities. According to the FBI’s uniform crime reports, Camden’s roughly 10 square miles of territory saw 1,993 violent crimes in 2012, including 67 cases of murder and non-negligent manslaughter.

The city’s police department had its own troubles: money, staffing levels and cases of frame-ups and corruption. Taken over by the state, the city’s police force in 2013 was dissolved, and replaced with a county-wide force (which hired many of the former members of the city police). It also got a new chief, Scott Thomson, who had worked his way up the ranks of the city force, and has called for rethinking of the police forces’ approach to their communities.

An advocate of community policing — which put patrol teams walking regular beats through high-crime neighborhoods, rather than doing paperwork in station houses, and getting involved in school, sports and other community events — Thomson and the Camden County Police Department drew national attention for innovative tactics in building support and relations with the community, and tackling Camden’s sky-high crime rate (at one point, an estimated 175 open-air drug markets operated in the city). The department is now the second-largest in southern New Jersey; only Atlantic City has a larger police force.

In May last year, President Obama came to Camden to give a speech about a new executive order that ordered federal agencies not to supply local and state police forces with “militarized” equipment like grenade launchers, bayonets and high-caliber weapons. In his talk, he held up Camden as a “symbol of promise” for the nation, claiming that its new model of policing had reduced Camden’s violent crime by 24%, cut murders there by 47%, and eliminated 65% of open-air drug markets in the city.

The president also visited Camden’s tactical operations center, but had less to say about the high-tech equipment based there for finding suspects and tracking crime hotspots. Within the Real-Time Tactical Operations and Intelligence Center, staffers monitor arrays of TV screens bringing input from over 120 cameras mounted in high-crime areas, and from a 30-foot SkyPatrol robotic mobile crane that can be moved to a problem area and at once take activity throughout an area of six square blocks.

In addition, new high-tech scanners mounted on police cruisers scan licenses plates, looking for matches for drivers with outstanding warrants. Microphones planted in dozens of locations pick up the sound of gunshots and focus nearby cameras on the area. According to at least one press account, local drug dealers and their customers now credit the technology-assisted Camden County Police Department with possessing powers — such as the ability to scan the streets with facial-recognition software and identify any wanted suspects — which they do not in fact possess.

Some law enforcement officials are actively exploring new ways to use technology — ranging from advanced surveillance methods to tracking social media to monitor criminal suspects — but in other cases it turns out to be the criminals’ own use of technology that winds up blowing the whistle on them. Here are two recent instances where that’s exactly what happened.

Take the case of Cathy Bernstein, a 57-year-old Port St. Lucie, Florida woman, who ran her black Ford Escort into a silver-covered van loaded with Christmas presents. She sped away from the accident site, as the injured van owner reported the hit-and-run, and was taken to a nearby hospital.

Unfortunately for Bernstein, her car was equipped with SYNC, a 911 assist system, that automatically dials the police whenever one of the vehicle’s airbags is deployed, gives the police the vehicle’s location and connects them online. When a police phone operator called her, Bernstein denied she had been in an accident, saying she had just braked strongly to avoid colliding with a car that had suddenly pulled out in front of her.

Skeptical of the claim, the police operator sent a squad car to Bernstein’s home, where the cops discovered the Ford’s airbag deployed, and its front end smashed and marked with silver paint from the van she had hit.

After first changing her story (to claim the damage to her car came from running into a tree), Bernstein eventually admitted not only the hit-and-run episode with the silver van, but also confessed when she hit the van, she had been escaping from an earlier hit-and-run incident, in which she had plowed into a truck. After being treated for her injuries, Bernstein was taken to the Port St. Lucie jail.

An even more striking example of technology coming back to bite a criminal suspect using it came in a 30-year-old murder investigation in Wilmington, Delaware. In July 1985, 54-year-old Joseph Braun, was found bludgeoned to death in his home there.

The murder investigation went nowhere, until 1999, when relatives of the dead man implicated Sandra Hartzag, the former girlfriend of another, now-deceased family member. Evidence linked her to having been present at the murder site, and police suspected she had escaped in a car belonging to the victim, which was found abandoned in Philadelphia.

But Hartzag could not be found, and the trial went quiet — until this October, when the Delaware County’s relatively new two-man cold-case unit reopened the case. To their delight, they found Hartzag had an active Facebook profile. They used it to track her to Dalton, Georgia, nearly 700 miles away, where. She was found living far off the grid in a homeless encampment, and had apparently been living in the area for about three years.

She was brought in for questioning, and eventually extradited to Delaware and charged with murder, robbery, conspiracy and use of a lethal weapon during a felony. A spokesman for the local Georgia police force observed that, but for Facebook, Hartzag probably “wouldn’t be sitting in jail today.”